MUTHUVEERU MUDALIAR Vs. VYTHILINGA MUDALIAR

JUDGEMENT

(1.) Assuming Exhibit I to be a genuine document and the recitals in the instrument to be true, I do not think that the effect of the transaction first recited, namely, an agreement between the brothers of the deceased and his widow that the former should take the whole of his share of the property," operated as an effective conveyance to the brothers of the widow's limited estate by inheritance. The recital itself .states that the agreement was conditional on the debts of the deceased being paid by the brothers, and the second recital (the conveyance by one ! brother to the other of the whole of the deceased's share of the property, on condition! that the brother to whom the Conveyance is a recited to have been made should pay the debts of the deceased) states that the debts had not been paid by the two brothers. There is no statement in the deed that the debts have been paid by the brother to whom the last mentioned conveyance is recited to have been made. The third recital, namely, a recital of a sale by the widow of a portion of the property is quite inconsistent with the view that she had under the transactions mentioned in the first two recitals surrendered the whole of her limited estate to the brothers, or one of them. The deed purports to convey the reversionary right of the two brothers few Chokka Mudaliar, but, in the view that at the time they purported to do this the widow had not been divested of her limited estate] and the brothers had nothing more than a reversionary right, this conveyance would be ineffective. See Manickam Pillai v. Ravialinga Pillai 29 M. 120 and my judgment in Rangappa Naik V/s. Karnti Naik 81 M. 366 : 18 M.L.J. 309 : 3 M.L.T. 355; in which the point in question was considered by a Full Bench.

(2.) In the view I take as to the construction of Exhibit I. I think this case, apart from any question of estoppel, is governed by the decision of the Full Bench in Munidamuthtt Nadan v. Srinivasa Pillai 21 M. 128. This decision was recently considered by the Privy Council in Bajrongi Singh V/s. Manokarnika Baksh Singh 30 A. 1 : 12 C.W.N. 74 : 3 M.L.T. 1 : 9 Bom.L.R. 1348 : 6 C.L.J. 766 : 5 A.L.J. 1 and was cited with approval; and as pointed out in the judgment in the Full Bench case to which I have referred, although the question before their Lordships was the general question of the right of a Hindu widow, in the absence of legal necessity to alienate property with the consent of the nearest reversioners, there is nothing as it seems to me to indicate that their Lordships were of opinion that the right was free from the qualification or restriction that the whole limited estate must be withdrawn.

(3.) Apart, therefore, from any question of estoppel, it seems to me that the decisions of the Courts below were right. As regards this question of estoppel, in the recent Full Bench case to which I have referred, the Judges were all of opinion that in the facts of that case the plaintiffs were estopped from setting up the invalidity of the alienation by the widow. The Judges were of opinion that they were precluded from holding otherwise having regard to the final sentence in the judgment of the Privy Council in Bairangi Singh V/s. Manokarnika Baksh Singh 30 A. 1 : 12 C.W.N. 74 : 3 M.L.T. 1 : 9 Bom.L.R. 1348 : 6 C.L.J. 766 : 5 A.L.J. 1.